IN THE COURT OF APPEALS OF IOWA
No. 18-1893
Filed January 23, 2020
STATE OF IOWA,
Plaintiff-Appellee,
vs.
DAVID LEE HERING,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Muscatine County, Mark D. Cleve,
Judge.
David Hering appeals a district court order following a restitution hearing.
AFFIRMED AND REMANDED.
David Hering, Fort Madison, pro se appellant.
Thomas J. Miller, Attorney General, and Darrel Mullins, Assistant Attorney
General, for appellee.
Considered by Vaitheswaran, P.J., Mullins, J., and Potterfield, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2020).
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MULLINS, Judge.
In 2004, David Hering was convicted of, and sentenced for, one count of
first-degree murder and two counts of attempted murder. The sentencing order
required him to pay court costs and additional restitution of $150,000.00 to his
victim’s estate and $27,409.84 to the Crime Victim Assistance Division (CVAD). In
a separate restitution order, the court ordered Hering to pay said amounts of
restitution to the victim’s estate and to the CVAD, “in addition to any other order
requiring payment of court costs, surcharges, fees or restitution.” The supreme
court affirmed his convictions and the sentences imposed. State v. Hering, No.
04-1222, 2006 WL 60678, at *1 (Iowa 2006).
In 2014, Hering filed a petition for a restitution hearing. As a result of that
hearing, the district court determined Hering’s obligation to his victim’s estate was
satisfied, which we affirmed. State v. Hering, No. 14-1343, 2016 WL 3271910, at
*1 (Iowa Ct. App. June 15, 2016). We also remanded the matter to the district
court for an order eliminating his obligation to the CVAD. Id. at *2. Hering also
claimed a due process violation resulted from the State withdrawing money from
his inmate account without giving him notice, but we found the record insufficient
to facilitate our review and therefore rejected the due process claim. Id.
In December 2016, Hering filed another petition for a restitution hearing.
Therein, he argued the State improperly deducted $2350.31 from his inmate
account over the years. The State did not file a resistance. The court entered an
order directing the clerk to “first use the funds to pay any unpaid court costs,
attorney fees or other assessed sums due and unpaid and the balance shall be
refunded to Hering’s prisoner account.”
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In April 2017, Hering again petitioned for a hearing, noting the clerk of court
had not refunded any of the funds to his inmate account. He argued his restitution
obligation was satisfied and the procedures used for withholding the funds violated
due process for lack of notice. The court denied the motion and Hering’s
subsequent motions to reconsider, enlarge, or amend as untimely. Hering
appealed, arguing he was entitled to a hearing on his claim. State v. Hering, No.
17-0724, 2018 WL 1865226, at *2 (Iowa Ct. App. Apr. 18, 2018). Concluding
Hering was entitled to a hearing, we reversed and remanded. Id. at *3–4.
In July 2018, Hering submitted an affidavit noting the amount deducted from
his prison account increased to $2581.62—$1284.00 of which came from
unsecured loans he obtained from outside sources and $1297.62 of which he
received as prison wages.
A hearing was held in August 2018. At the hearing, a representative of the
clerk of court’s office testified the original sum owed by Hering for court costs,
interest, and other fees amounted to $2625.47.
The court found Hering was responsible for $2625.47 in accruing court
costs and interest.1 The court found no basis in law that the amount deducted from
his account for prison wages, $1297.62, was impermissible. However, the court
found the funds flowing from unsecured loans he obtained from outside sources in
the amount of $1284.00 could not be taken to satisfy restitution without a pre-
deprivation hearing. See Walters v. Grossheim, 525 N.W.2d 830, 832 (Iowa 1994).
1 The court phrased its finding to appear to have concluded none of this amount
had been satisfied. However, the court subsequently appeared to have clarified
its acknowledgment that funds had been taken from Hering’s prison account and
put toward satisfying the obligation.
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The court therefore ordered that the $1284.00 be returned to Hering. Hering filed
a motion to reconsider, enlarge, or amend, in which he generally argued his plan
of restitution had been satisfied in its entirety and added that any restitution was
required to be collected from his involuntary conservatorship. The court denied
the motion and this appeal followed.
Hering forwards various interrelated arguments on appeal. He argues the
State’s claim for restitution is untimely, the court erred in its determination of the
amount of restitution owed, his restitution obligation is satisfied in full because no
supplemental order of restitution was ever entered, the procedures used by the
State to withhold money from his prison account violated due process for lack of
notice, and the State was required to collect restitution from his involuntary
conservatorship.
Appellate review of restitution-related orders is for legal error. State v.
Gross, 935 N.W.2d 695, 698 (Iowa 2019). Our task is to “determine whether the
court’s findings lack evidentiary support, or whether the court has not properly
applied the law.” State v. Ruth, 925 N.W.2d 589, 590 (Iowa 2019) (quoting State
v. Bonstetter, 637 N.W.2d 161, 165 (Iowa 2001)).
Hering first argues the State’s restitution claim is untimely. Citing Iowa
Code section 910.3, Hering argues the State was required to provide the amount
of restitution for court costs within thirty days of sentencing. He is incorrect; that
limitation only applies to pecuniary damages to victims, not court costs. See Iowa
Code § 910.3. And we agree with the State that restitution for court costs and the
like can change over time. The original restitution order required Hering to pay
restitution to his victim’s estate and CVAD, “in addition to any other order requiring
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payment of court costs, surcharges, fees or restitution.” The sentencing order
required Hering to pay court costs. Since the imposition of his sentence, Hering
has mounted several attacks upon his conviction and sentence. Consequently,
the amount owed for court costs has increased over time. While the original order
for restitution did not identify a specific amount for court costs, courts are allowed
to enter permanent, supplemental orders “[a]t a later date as determined by the
court” “setting the full amount of restitution.” Id. That is what the court did here.
The sentencing order and original restitution order made up the original, but
incomplete, plan of restitution. Pursuant to section 910.7(1), Hering petitioned for
a restitution hearing. Following the hearing, the court entered an order pursuant
to section 910.7(2) modifying the plan of restitution to identify Hering’s restitution
obligation as to court costs. Thus, the ordering of restitution is not untimely. The
foregoing also defeats Hering’s argument that his restitution obligation is satisfied
in full because no supplemental plan of restitution was entered. The order he
claims does not exist is the one precipitating this appeal.
We turn to Hering’s claim that the court’s determination of the amount of
restitution owed for court costs, $2625.47, is not supported by the evidence. He
complains the State did not provide a “written itemization.” We will affirm the
court’s determination if it is supported by substantial evidence. See State v.
Paxton, 647 N.W.2d 106, 108 (Iowa 2004). “Evidence is substantial when a
reasonable mind would accept it as adequate to reach a conclusion.” Bonstetter,
637 N.W.2d at 165 (quoting Hasselman v. Hasselman, 596 N.W.2d 541, 545 (Iowa
1999)).
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At the restitution hearing, a representative from the clerk of court’s office
testified Hering owed a total of $2625.47 for court costs, interest, and other fees.
Hering declined to cross-examine the representative or otherwise challenge her
calculation of the amount owed. The unchallenged testimony, which the court
accepted, is substantial evidence in support of the district court’s determination
Hering’s total obligation was $2625.47. The fact that no “written itemization” was
provided does not negate the sufficiency of the sworn, unchallenged testimony.
We also note our rejection of Hering’s claim that the amount reached cannot
include accruing interest, as Iowa law treats restitution as a civil judgment. See
Iowa Code § 910.7A(1); State v. Hagen, 840 N.W.2d 140, 151–53 (Iowa 2013).
Next, Hering challenges the court’s refusal to order the return of the
$1297.62 in prison wages that was deducted from his account. He claims he was
entitled to a pre-deprivation hearing before the funds were deducted. He also
complains the State deducted the money absent a restitution order specifying the
amount owed for court costs. As to the former claim, while an inmate is entitled to
a pre-deprivation before the deduction of funds obtained from outside sources, see
Walters, 525 N.W.2d at 832, the pre-deprivation due process protection does not
apply to prison wages. State v. Bradley, 637 N.W.2d 206, 217 (Iowa Ct. App.
2001), abrogated on other grounds by State v. Jenkins, 788 N.W.2d 640, 647 (Iowa
2010); see also State v. Love, 589 N.W.2d 49, 51 (Iowa 1998) (“An inmate does
not have a constitutional right to prison wages.”). As to the latter claim, the district
court’s entry of the supplemental order renders the issue moot, subject to the
court’s determination of Hering’s reasonable ability to pay, which will be addressed
below. See generally Homan v. Branstad, 864 N.W.2d 321, 328 (Iowa 2015).
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Finally, Hering argues the State was required to collect any restitution from
his involuntary conservatorship. In support of his argument, Hering cites various
statutes contained in the probate code, Iowa Code chapter 633. But criminal
restitution is governed by Iowa Code chapter 910, which provides a variety of
methods for collecting restitution. For example, an order for restitution “constitutes
a judgment and lien against all property of a liable defendant” and may be enforced
“in the same manner as a civil judgment.” Iowa Code § 910.7A. While section
633.654 provides for general requirements of form and verification of claims
against a ward, conservatorship, or conservator, that statute does not “affect or
prevent an action or proceeding to enforce any . . . lien upon the property of the
ward.” Id. § 633.664. We reject Hering’s claim that the State was required to
proceed against his involuntary conservatorship. We consequently reject Hering’s
related claim that the State did not give timely notice of deducting prison-wage
funds for failure to provide his conservator written notice of its intention to deduct
funds. See id. § 904.702(1).
Having rejected each of Hering’s claims on appeal, we affirm the district
court’s determination of the amount owed by Hering; its return of funds flowing
from unsecured loans; and its refusal to order a return of the funds flowing from
prison wages, at least at this juncture. However, we choose to address one
additional wrinkle raised by Hering in his reply brief.2 Hering complains the district
2While we do not typically consider issues raised for the first time in a reply brief,
we find the circumstances here warrant exception. In his reply brief, Hering raises
an argument based on our supreme court’s recent ruling in State v. Albright, 925
N.W.2d 144 (Iowa 2019), which was filed one day after Hering submitted his proof
brief on appeal.
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court ordered him to pay court costs as restitution without first determining his
reasonable ability to pay. See Iowa Code § 910.2(1)(a); Albright, 925 N.W.2d at
159. The court’s supplemental order amounted to a determination of the amount
of court costs attributable to Hering. Now that the court has set “the full amount of
restitution,” the department of corrections is to prepare a plan of payment and
forward it to the clerk of court. Albright, 925 N.W.2d at 160. Upon receipt of the
plan of payment, the court must make an assessment of Hering’s reasonable
ability to pay and enter a final order of restitution. See Iowa Code §§ 910.2(1)(a);
.5(1)(a), (1)(d), (5); .6; Albright, 925 N.W.2d at 158–62. Thus, we remand the
matter to the district court for completion of the remaining restitution procedures.
We leave it to the district court to decide whether the previously deducted prison
wages are subject to a reasonable-ability-to-pay determination. If so, and the total
amount Hering is determined reasonably able to pay is less than the amount that
has been deducted from his prison wages, then the court shall order the excess
over the amount he is reasonably able to pay be returned to Hering.
AFFIRMED AND REMANDED.